ABN AMRO Bank, N.V. v. MBIA Inc.

81 A.D.3d 237, 916 N.Y.S.2d 12

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 2011
• Status: Published

Opinions

OPINION OF THE COURT

Freedman, J.

Plaintiffs are institutions that hold insurance policies issued by defendant MBIA Insurance Corporation (MBIA Insurance), which along with the other defendants form a conglomerate. By this plenary action, plaintiffs challenge the restructuring of the conglomerate in 2009, which the Superintendent of the New York State Insurance Department had approved. Plaintiffs claim that the restructuring amounted to a fraudulent conveyance that left MBIA Insurance undercapitalized and potentially unable to pay out on plaintiffs’ future claims on their policies. The complaint asserts causes of action for breach of contract, unjust enrichment, and violation of the Debtor and Creditor Law, and also seeks a declaratory judgment piercing the corporate veil.

Defendants contend in a motion to dismiss the complaint that plaintiffs fail to state causes of action, and that the claims constitute an impermissible collateral attack on the Superintendent’s approval of the restructuring, which plaintiffs can only challenge in the CPLR article 78 proceeding that they have also commenced. The motion court denied defendants’ dismissal motion and we reverse.

The following is not in dispute: Before the restructuring, MBIA Insurance was the wholly-owned subsidiary of defendant MBIA Inc., a publicly traded holding company, and defendant MBIA Insurance Corp. of Illinois (MBIA Illinois),¹ an essentially dormant company, was the wholly-owned subsidiary of MBIA Insurance. MBIA Insurance, the only active insurer of the three, was licensed under Insurance Law article 69 to offer financial guaranty insurance policies in New York covering securities and other financial instruments held by its policyholders. Under each policy, MBIA Insurance promised to pay the policyholder if the obligor on the covered instrument failed to pay amounts owing on it. Historically, MBIA Insurance had been the world’s largest guaranty insurer for municipal bonds and other securities issued by public entities, and its business had exclusively consisted of writing those policies, but in recent years the company had branched out into providing coverage for “structured-finance” products, which are obligations payable from or tied to the performance of pools of assets (such as mortgage-backed securities and collateralized debt obligations). As of the end of 2008, roughly 70% of MBIA Insurance’s portfolio consisted of municipal bond policies ($553.7 billion in face amount) and 30% consisted of structured-finance product policies ($233 billion in face amount).

Plaintiffs in this action hold MBIA Insurance policies guaranteeing payment on structured-finance products in plaintiffs’ portfolios. With the onset of turmoil in the financial markets in 2007, the risk of payment defaults for structured-finance products increased, as did MBIA Insurance’s potential liability under its structured-finance policies. The company’s growing exposure caused the rating agencies to downgrade its creditworthiness. MBIA Insurance stopped writing new structured-finance policies as of early 2008.

On February 25, 2008, MBIA Inc. publicly announced its plan to establish separate business entities to operate its “public, structured, and asset management businesses.” On December 5, 2008, MBIA Insurance, on behalf of itself and its affiliates, submitted an application to the Superintendent setting forth its plan to restructure defendants’ business through a series of transactions, many of which required the approval or non-objection of the Superintendent pursuant to various sections of the Insurance Law.

In its application, which was supplemented and amended a number of times through February 16, 2009, MBIA Insurance proposed the following transactions: First, MBIA Insurance would pay a $1,147 billion dividend to MBIA Inc. Second, MBIA Insurance would redeem about a third of its capital stock from MBIA Inc. and retire it, and in exchange would give MBIA Inc. about $938 million more in cash and securities plus all of the outstanding stock of MBIA Illinois. Third, MBIA Inc. would transfer the approximately $2.27 billion of cash and securities it had received from MBIA Insurance for its dividend and stock redemption, along with the stock of MBIA Illinois, to MBIA Inc.’s wholly-owned subsidiary, MuniCo Holdings, Inc. (MuniCo Holdings). The transfer would change MBIA Illinois from a subsidiary of MBIA Insurance to a subsidiary of MuniCo Holdings. Fourth, MuniCo Holdings would capitalize MBIA Illinois by contributing $2,085 million of the cash and securities that it had received from MBIA Inc.

As the final step of the restructuring, MBIA Insurance proposed that MBIA Insurance and MBIA Illinois would enter into a complex reinsurance transaction in which, among other things, MBIA Illinois would reinsure nearly all of MBIA Insurance’s policies for municipal bonds and other public finance securities on a “cut-through” basis, meaning that public finance policyholders could claim directly against MBIA Illinois as well as MBIA Insurance. In exchange, MBIA Insurance would pay MBIA Illinois about $3.66 billion, which included about $3 billion in premiums that public finance policyholders had prepaid. Under the proposal, MBIA Illinois would also agree to administer and service all of MBIA Insurance’s reinsured policies. The end result of the restructuring was to segregate MBIA Insurance’s public finance and structured-finance portfolios by having the newly-capitalized MBIA Illinois take responsibility for the public finance portfolio, leaving only MBIA Insurance liable for claims under the structured-finance portfolio.

The Superintendent responded to MBIA Insurance’s application by letter dated February 17, 2009. After describing the proposed transactions in detail, the Superintendent issued the following determinations, among others: First, the Superintendent approved the MBIA Insurance dividend payment to MBIA Inc. under Insurance Law § 4105 (a), which required the Superintendent to determine that MBIA Insurance would “retain sufficient surplus to support its obligations and writings.” Second, the Superintendent approved the stock redemption as “reasonable and equitable” to MBIA Insurance, as required under Insurance Law § 1411 (d).

The Superintendent next addressed aspects of the proposed reinsurance transaction which required his permission or non-disapproval under a number of Insurance Law provisions. Section 1505 (a) and (d) of the Insurance Law provide, in relevant part, that a “domestic controlled insurer” (here, MBIA Insurance) and “any person in its holding company system” (here, MBIA Illinois) may enter into a reinsurance transaction upon 30 days’ advance notice to the Superintendent if, after considering (among other factors) “whether [the transaction] may adversely affect the interests of policyholders” (§ 1505 [e]), the Superintendent does not disapprove the transaction. In his letter, the Superintendent specified that, based upon the statutory factors, he did not disapprove. The Superintendent also confirmed that MBIA Insurance would receive full financial credit for the reinsurance arrangement under Insurance Law §§ 1308 and 6906 (a), so that it could release all unearned premium, contingency, and other reserves attributable to the reinsured public finance policies.

For each approval, non-disapproval or other determination in the letter, the Superintendent stated that he relied on the truth of MBIA Insurance’s representations in its application and other submissions, on the Superintendent’s examination of defendants’ financial condition before the restructuring, and on his analysis of defendants’ financial condition after the restructuring.

On February 17, 2009, the same day that the Superintendent issued his letter, defendants consummated the restructuring transactions. On February 18, the Superintendent issued a press release entitled “Department Facilitates, Supervises MBIA Split; Should Add Capacity to Municipal Bond Insurance Market” (available at http://www.ins.state.ny.us/press/2009/ p0902181.htm). The press release announced that the Superintendent had overseen “a transformation of [MBIA Insurance] that effectively splits that company in two, dividing its assets and liabilities between two highly capitalized insurance companies.” The Superintendent added that

“[b]oth [MBIA Insurance] and [MBIA Illinois] will continue to pay all valid claims in a timely fashion, and both entities will have sufficient resources to meet policyholder claims as they come due. Consistent with New York State Insurance Law, the [Superintendent] only approved the transaction after deciding that both companies would have sufficient statutory capital to meet the letter and spirit of the Insurance Law. The review and study process lasted approximately one year.”

In May 2009, plaintiffs commenced this action in which they assert fraudulent conveyance claims against defendants under New York’s Debtor and Creditor Law §§ 273, 274 and 276. They also assert common-law claims for breach of the implied covenant of good faith and fair dealing and unjust enrichment, and seek a declaration piercing the corporate veil and holding defendants jointly and severally liable under MBIA Insurance’s policies. The essence of plaintiffs’ allegations is that, through the business restructuring, defendants had siphoned assets worth about $5 billion from MBIA Insurance and transferred them to MBIA Illinois to limit their exposure to “an ongoing financial crisis that has made it increasingly likely that MBIA Insurance will have to pay out billions to [p]laintiffs and other holders of financial guarantee insurance policies written by MBIA Insurance.” As a result, plaintiffs claim, MBIA Insurance is insolvent. Plaintiffs asked the trial court to invalidate the transfer of assets out of MBIA Insurance, or alternatively to declare that defendants are jointly and severally liable to plaintiffs under their MBIA Insurance policies. Plaintiffs claimed that MBIA Insurance would be unable to meet its future obligations under their policies, but they did not allege that the company has failed to pay them on any outstanding claims, or even that they have suffered any other monetary damages.

On June 9, 2009, in lieu of answering, defendants moved to dismiss the complaint on the ground that plaintiffs’ claims in this plenary action are impermissible collateral attacks on the Superintendent’s approval of the restructuring, which can only be challenged in an article 78 proceeding, and that the claims fail to state causes of action. Six days later, plaintiffs filed an article 78 petition naming the Superintendent and defendants as respondents. Plaintiffs claim that the Superintendent acted arbitrarily and capriciously, abused his discretion, and exceeded his authority by issuing the February 17 letter and making the determinations therein because the restructuring “is not ‘fair and equitable’ to MBIA Insurance or its structured-finance policyholders.” For relief, plaintiffs ask that the February 17 letter be annulled and the Superintendent be directed to disapprove the transactions at issue. The article 78 proceeding was assigned to the same Justice that presides over this action.

By decision and order dated February 17, 2010, as corrected on February 24, 2010, the motion court denied defendants’ motion to dismiss the complaint in this action (26 Misc 3d 1223[A], 2010 NY Slip Op 50238[U]). Rejecting the argument that plaintiffs were collaterally attacking the Superintendent’s approval, the court held that approval under the Insurance Law did not “immunize” defendants from claims under the Debtor and Creditor Law and the common law. The court also emphasized that the Superintendent had issued the approval letter without giving plaintiffs and other MBIA Insurance policyholders notice or an opportunity to be heard. In addition, the court found that the scope of the Superintendent’s review and approval in the letter was unclear, and stated that its ruling did not foreclose defendants from asserting their collateral attack argument in a summary judgment motion after discovery had been conducted. Finally, the court rejected defendants’ challenges to the legal sufficiency of plaintiffs’ allegations.

The three common-law claims should have been dismissed for failure to state causes of action. For their breach óf contract claim, plaintiffs allege that MBIA Insurance breached an implied covenant of good faith and fair dealing in its insurance policies. Plaintiffs do not claim that MBIA Insurance has failed to make any payment due under the policies, but instead contend that the company has frustrated an implicit purpose of obtaining the policies, namely “to enhance the value and credit rating” of the covered structured-finance products. However, since this alleged purpose is nowhere reflected in the policies, it cannot serve as the basis for a claim of breach of contract or breach of the implied covenant of good faith and fair dealing (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Xerox Corp., 25 AD3d 309, 310 [2006], lv dismissed 7 NY3d 886 [2006] [covenant of good faith and fair dealing cannot be construed so broadly as to create independent contractual rights]). The dissent opines that plaintiffs state a claim by alleging that the restructuring increased the chance of default on the insurance policies, but given that no default has occurred and no monetary damages are claimed, no breach of a specific contractual provision has been made out.

The claim seeking a declaration piercing the corporate veil and holding defendants jointly and severally liable also fails. As noted, plaintiffs do not allege that they have suffered injury because MBIA Insurance has not paid any of its obligations under the insurance policies. Rather, plaintiffs seek a declaratory judgment that, should the obligors under their insured securities default in the future, then plaintiffs may look to MBIA Inc. and MBIA Illinois to .satisfy their insurance claims. In effect, plaintiffs seek an advisory opinion premised on future events that are beyond defendants’ control and thus are speculative. This is not the proper subject of a declaratory judgment claim (see Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988]; Uhlfelder v Weinshall, 47 AD3d 169, 182 [2007]). Moreover, the basis for any declaratory judgment would be a finding that the restructuring was a fraudulent conveyance, in direct conflict with the Superintendent’s determinations.

Plaintiffs also fail to allege particularized statements detailing fraud or other corporate misconduct that would warrant piercing the corporate veil, especially since defendants were formed for legal purposes and engaged in legitimate business (see Sheridan Broadcasting Corp. v Small, 19 AD3d 331, 332-333 [2005]). Plaintiffs do not claim, for instance, that any of defendants were the mere alter egos of another or that the corporate formalities were disregarded. Plaintiffs complain of the actions of the defendant corporations, but do not claim that any of them were not legitimate entities organized for legitimate purposes. Thus, plaintiffs’ allegations are insufficient to make out a claim that MBIA Inc., through its domination of MBIA Insurance, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against plaintiffs “such that a court in equity will intervene” (id. at 333; see also Ward v Cross County Multiplex Cinemas, Inc., 62 AD3d 466 [2009]).

Plaintiffs also fail to state a cause of action for unjust enrichment, a quasi-contractual claim based on the principle that a person should not be allowed to enrich himself or herself at the expense of another (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). Plaintiffs do not allege that MBIA Insurance has conferred some benefit upon MBIA Inc. and MBIA Illinois at plaintiffs’ expense. Rather, their contention is that those companies hold assets that, “in equity and good conscience, should be returned to MBIA Insurance,” which is insufficient to allege an unjust enrichment claim (see IDT Corp., 12 NY3d at 142).

The remaining causes of action, under the Debtor and Creditor Law, should have been dismissed as improper collateral attacks on the determinations that the Superintendent made in the exercise of his regulatory authority. “The Superintendent of Insurance, as the head of the Insurance Department of the State of New York, has been given full authority to supervise and regulate the business of insurance in this State” (Blue Cross & Blue Shield of Cent. N.Y. v McCall, 89 NY2d 160, 163 [1996]; see also Insurance Law §§ 201, 301). The Superintendent periodically examines the affairs of every insurer doing business in New York (Insurance Law § 309), and upon determining that an insurer lacks sufficient assets to honor its commitments to policyholders, the Superintendent may initiate insolvency proceedings under article 74 of the Insurance Law (see Corcoran v Ardra Ins. Co., 156 AD2d 70, 73 [1990], affd 77 NY2d 225 [1990], cert denied sub nom. Ardra Ins. Co. v Curiale, 500 US 953 [1991]).

The appropriate vehicle for challenging a determination by the Superintendent is a proceeding brought under CPLR article 78 (see CPLR 7801; Insurance Law § 326 [specifying that determinations of the Superintendent are subject to judicial review in an article 78 proceeding]; Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 547 [2006]; Sohn v Calderon, 78 NY2d 755, 767 [1991]; Matter of Lewis Tree Serv. v Fire Dept. of City of N.Y., 66 NY2d 667 [1985]). A plenary action that seeks the overturn of the Superintendent’s determination, or challenges matters that the determination necessarily encompasses, constitutes “an impermissible ‘indirect challenge’ ” to that determination (Fiala v Metropolitan Life Ins. Co., 6 AD3d 320, 321 [2004], quoting Chatlos v MONY Life Ins. Co., 298 AD2d 316, 317 [2002], lv denied 99 NY2d 504 [2003]). In Fiala, this Court upheld the dismissal of statutory and common-law claims that policyholders had brought against the issuing insurance company and its directors for consummating the company’s conversion, or “demutualization,” from a mutual life insurance company to a domestic stock life insurance company, after the Superintendent had approved the demutualization plan under Insurance Law § 7312 (6 AD3d at 321-322). This Court found that the dismissed claims constituted impermissible collateral attacks on the Superintendent’s determination.²

The attempt to distinguish Fiala on the ground that the Superintendent approved the demutualization plan after notice to policyholders and a public hearing is not sound, given that the application and approval process for the restructuring did not violate lawful administrative procedure. In any event, plaintiffs have not been deprived of the opportunity to be heard, since their article 78 proceeding enables them to challenge the Superintendent’s approval and the restructuring. The dissent’s concern that, without notice, plaintiffs might have missed the deadline for filing the article 78 proceeding is not relevant here.

By their first, second and third causes of action, plaintiffs allege that the restructuring was a fraudulent conveyance under Debtor and Creditor Law § 273 because MBIA Insurance did not receive fair consideration for transferring its assets, under Debtor and Creditor Law § 274 because the transfer left MBIA Insurance with unreasonably small capital, and under Debtor and Creditor Law § 276 because defendants actually intended to hinder, delay or defraud MBIA Insurance’s structured-finance policyholders. These allegations directly conflict with the Superintendent’s determination, based on an analysis of defendants’ financial condition after the restructuring, that MBIA Insurance would retain “sufficient surplus to support its obligations and writings” and that the transaction was fair to MBIA Insurance’s policyholders. Further, plaintiffs seek to reverse the dividend, stock redemption and reinsurance transactions that comprise the restructuring, notwithstanding that the Superintendent specifically approved those transactions. Accordingly, the only appropriate vehicle for plaintiffs’ claims is their proceeding pursuant to CPLR article 78.

The dissent contends that, because plaintiffs seek damages or a declaration that defendants are jointly and severally liable, they raise matters that the Superintendent did not consider. But since plaintiffs are not claiming that MBIA Insurance presently owes them any payment under the structured-finance policies and have not suffered any damages, they neither seek any monetary relief nor state a viable cause of action for a declaratory judgment. Moreover, all of plaintiffs’ allegations in the complaint necessarily conflict with the Superintendent’s broad determination that the restructuring is fair to MBIA Insurance policyholders and that the company remains solvent.³

The dissent also claims that the allegation that the restructuring was a fraudulent conveyance would not conflict with the Superintendent’s determination because the MBIA Insurance application was submitted and the determination was issued before the restructuring (i.e., the allegedly fraudulent conveyance) took place. But that contention is belied by the near-simultaneity of these events and the substance of the determination. MBIA Insurance last supplemented its application on February 16, 2009, the Superintendent issued its determination that the restructuring transactions would be fair to defendants on February 17, and the transactions occurred later the same day.

Finally, plaintiffs never claim, as the dissent maintains, that defendants deliberately misled the Superintendent about their finances and the effect of the restructuring to obtain the Superintendent’s approval. At most, plaintiffs allege that while MBIA Inc. has “claimed publicly that its internal projections show that MBIA Insurance is still solvent,” it admits in other public filings that such projections are the result of “an inherently uncertain process” and that there was no assurance, that its estimates were accurate. If plaintiffs are contending that the Superintendent based his determination on bad information and projections, they should explore the factual bases for the determination in the article 78 proceeding to which the Superintendent is a party.

Accordingly, the orders of the Supreme Court, New York County (James A. Yates, J.), entered February 18, 2010, March 2, 2010 and March 5, 2010, which denied defendants’ motion to dismiss the complaint, should be reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

1 . MBIA Illinois is now known as National Public Finance Guarantee Corporation.

2 . The motion court’s assertion that in Fiala, this Court only upheld the dismissal of claims alleging that the insurer defendants violated provisions of the Insurance Law was mistaken. This Court also upheld the dismissal of claims for breach of contract, breach of fiduciary duty and fraud as impermissible collateral attacks on the Superintendent’s determination (Fiala, 6 AD3d at 322).

3 . Since the Superintendent’s determination about the restructuring is comprehensive, the analysis of the United States District Court in Aurelius Capital Master, Inc. v MBIA Ins. Corp. (695 F Supp 2d 68 [2010]) does not provide a basis for maintaining this action.